A general resource for employees and management alike, covering issues old and new in the law of Ontario employment relationships.

Thursday, March 14, 2013

Court declines to hear Police Officer's DFR Complaint

By way of background, let me explain that all unions have a duty of fair representation to their members. For most unionized employees in Ontario, their recourse for breaches of the duty of fair representation (DFR) lies in an application to the Ontario Labour Relations Board.

However, there are certain groups excluded from the Labour Relations Act, with organizing provisions built into other statutes, such as police and firefighters. Under the Police Services Act, police can be represented by an association; as a result, most police services in the Province are represented by Police Associations, which are in most ways indistinguishable from unions.

But, whereas the Labour Relations Act builds specific recourse to the OLRB for DFR complaints, the Police Services Act has no parallel. Accordingly, it is now trite law that the OLRB has no jurisdiction to hear DFR complaints from police or firefighters.

Nonetheless, it is also trite law that Police and Fire Associations, at common law, owe a duty of fair representation to their members.

Mr. Cumming commenced a Court action based on the Association's alleged failure to properly represent him in disciplinary proceedings. The Association took the position that the essential nature of the dispute arose from the interpretation, application, administration, or violation of the collective agreement, and therefore is the sole jurisdiction of an arbitrator - and accordingly that the Court doesn't have jurisdiction. Justice Gunsolus accepted this argument, dismissing the action.

The decision is not entirely unprecedented. In 2006, the Court of Appeal came to a similar decision in Renaud v. Town of Lasalle Police Association. The Police Services Act creates a comprehensive scheme for dispute resolution, and therefore arbitrators have exclusive jurisdiction. That decision was probably binding on Justice Gunsolus, and probably made this a foregone conclusion.

But I'm still not sure it's right.

Is an individual member of a bargaining unit a "party" to a collective agreement?

There are a couple of issues: Firstly, the decision is premised on the notion that the individual officer is a party to the Collective Agreement (and therefore bound to the recourse contained within the Collective Agreement). While the legal relationships between employer, union, and bargaining unit member are complicated, I'm not at all sure that this is a correct statement of law. In many contexts, the Courts have concluded that individual bargaining unit members are not parties to collective agreements. (See, for example, Speckling v. Local 76 of the Communications, Energy, and Paperworkers' Union of Canada, 2009 BCCA 258, or CUPE Local 79 v. Toronto, 2012 ONSC 1158.)

However, even if you supposed that the individual bargaining unit member is a party to the collective agreement, it would be a party as a result of the union's representative role - in other words, the union's participation in the collective agreement is on behalf of the individual employees, entering into a contract with the employer. It is incoherent to suggest that the collective agreement in any way constitutes a contract between the union and the bargaining unit members.

Is the duty of fair representation a term of the collective agreement?

Secondly, the duty of fair representation, at common law, is one which exists prior to the collective agreement. Mandatory grievance arbitration clauses, such as in the Labour Relations Act or s.123/124 of the Police Services Act, regard disputes in terms of breaches of the collective agreement.

The Labour Relations Act creates a different mechanism for dealing with DFR complaints, and is therefore 'comprehensive'. However, the Police Services Act does not create a DFR mechanism. To read the mandatory arbitration clause as creating a DFR mechanism raises a number of issues, not the least of which is that it would essentially mean that the DFR is derived implicitly from the collective agreement, which is clearly not the case, as the association is actually bound by the DFR when *negotiating* the collective agreement.

Was Renaud correctly decided?
To really get in at the meat of this, we need to trace back into the precedents underlying the Renaud decision. Abbott v. Collins is an important Court of Appeal decision from 2003, involving OPP officers suing other officers for allegedly disciplining them.

In Renaud, the Court said of Abbott:

In Abbott v. Collins, [2003] O.J. No. 1881 (C.A.), this court confirmed that the scheme created by the Act and Regulations and the Collective Agreement is intended by the legislature to provide a comprehensive scheme to govern all aspects of the employment relationship between the appellant and the respondents. [Emphasis added]

And here's the rub. That's not what the Court said in Abbott. Nor would Renaud have been on all fours with Abbott, were that true.

In Abbott, what the Court actually said is this:

...the legislative scheme in Ontario, like the one in Saskatchewan, is intended to create a complete substantive and procedural code for discipline of police officers within the provisions of the Police Services Act and its regulations. [Emphasis added]

Or, put another way, referring to a Supreme Court interpretation of similar Saskatchewan legislation, this:

Extrapolating from that approach, Bastarache J. concluded that the legislature had provided a comprehensive scheme regarding discipline within the Police Act and Regulations, which included the investigation and adjudication of discipline matters, and that formalistic interpretations of the Act must be avoided if they would deny the Commission jurisdiction in such cases. [Emphasis added]

Put another way, the Court in Abbott did not deal with the question of whether or not the Police Services Act provided a "comprehensive scheme to govern all aspects of the employment relationship". In none of the decisions relied upon in the Renaud decision was the DFR even an issue.

What has the Supreme Court said about the DFR?
Justice Gunsolus also refers to the Supreme Court's decision in Gendron as affirming that the "exclusive principle applies in respect of the duty of fair representation".

In Gendron, however, the issue was whether or not a bargaining unit could pursue his DFR rights under common law, despite the fact that the Canada Labour Code gave him a statutory DFR right. The Supreme Court applied what is now a well-established analysis, as above, regarding comprehensive legislative schemes. The common law rights and recourse are, in effect, displaced by the statutory language of the Canada Labour Code.

By contrast, there's no question that the Police Association's DFR arises by virtue of common law. (I would argue that this, in and of itself, is a good reason to question whether or not the Police Services Act is 'comprehensive' in this regard.)

Conclusion
While the Courts in Renaud and Cumming suggest that an officer might seek recourse through conciliation and arbitration against the Association, it is less than obvious to me that this is actually a plausible method in general (and it seems to me that there would be some instances where an arbitrator certainly wouldn't have jurisdiction). Does anyone know of any circumstances in which this has been attempted?

In sum, I question Renaud's reliance on Abbott, and believe that the question needs to be revisited. The issues in Abbott bore little-to-no resemblance to the issues in Renaud. Even if Abbott called the Police Services Act 'comprehensive' in the way that Renaud suggests, that would be obiter outside of the disciplinary context. There are enough differences, generally speaking, between DFRs and disciplinary grievances that such a cursory comparison is inappropriate; a case such as Cumming calls for a careful examination of what, precisely, the Police Services Act says of DFRs.

*****

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2 comments:

As far as I know the lead case [two awards - one preliminary] dealing with a police DFR complaint is Lafrance, [2009] O.L.A.A. No. 313 (preliminary) and [2009] O.L.A.A. No. 675. It it's not available for free on CanLII. The conclusion in this case was that the duty of fair represenation only applies where the union has the power of exclusive representation (that is, where the police association member cannot advance a claim him or her self). This finding is consistent with the general labour law jurisprudence that the DFR doesn't apply to things like WSIB claims because the DFR really only exists to a counter-balance to the unions 'power' of exclusive representation. In the police context, this means that the DFR almost certainly doesn't apply in discipline cases because the union doesn't have the exclusive power of representation in discipline cases. Police discipline cannot be grieved by the union, but, rather, goes through a process under the PSA. Taking a DFR to arbitration works a bit better in the police context where a statutory arbitration procedure is available (that is, the union and employer don't have to jointly agree on an arbitrator). However, I think the courts have probably got this one wrong. You can see in the preliminary award arbitrator Starkman himself seems a bit befuddled by the fact that the Court of Appeal has designated arbitrator as the proper venue for a DFR (but concludes that it's the Police Services Act, not the collective agreement that provides the mechanism for instituting the arbitration). The DFR is a common law duty (later codified in legislation). It really doesn't arise out of the collective agreement. These decisions really just follow the trend that anything generally having to do with the workplace gets thrown to an arbitrator. It seems like the Ontario Court of Appeal judgment causing this mess was a quick endorsement with profound implications. I agree the Court of Appeal should revisit this decision, but it looks like there may not be the demand because the police arbitration commission provides a relatively acceptable forum for these disputes as long as everyone maintains the fiction that the PSA allows an invididual police association member to start the statutory grievance procedure (against the union only).

Thanks Chris, that's helpful. I'll have to have a look at the Starkman awards. He can be a little unconventional, but he's a bright arbitrator.

I think you're right: It's a quick endorsement, following a general trend, but in a scenario that's different in some very important ways from the general trend. It seemed fundamentally wrong to me to simply say that questions of the DFR go to interpretation of the collective agreement.

That said, while I think I see the argument about the DFR counterbalancing the union's role as exclusive representative, I'm still not sure I like the notion of them being relieved from it where their role isn't mandatory. I mean, if I'm an officer, paying my dues, and I end up in disciplinary proceedings and the Association tells me I'm on my own and should go pay for my own lawyer...I think I'd be unimpressed, and not unreasonably so.